Cheshire West and Chester Council found not at fault for recovering direct payments, but found at fault in delivering care not in line with the care plan

Decision Date: 29th October 2019

What Happened

Mr B complained that the Council failed to provide him with satisfactory support when his carer left in February 2017, and unreasonably sought repayment of direct payments.

Mr B received a direct payment for his care since 2016. After his PA left in 2017, Mr B paid cash in hand to his brother’s girlfriend to provide some of his care. The Council was seeking to recover £14,373.25 of the direct payments made between 2016 and January 2018 because Mr B had not provided evidence to show he spent the money on his care needs.

The direct payment ended in January 2018 for reasons not explained in the report.

The Council began looking for care agencies and carried out a new assessment in February 2018.

It was assessed that Mr B required some support during the week, including sleep-ins twice a week. Despite this, between February 2018 and September 2018, the only care put in place was one hour weekly mental health support.

The Council completed a further assessment in September, which increased his day time support, and sleep-ins to seven nights a week, which was not put in place.

During the time of both assessments, Mr B’s care plan was not updated to reflect his change in needs. It remained in his care plan that he required sleep-ins three times a week.

Mr B’s mother stopped the care package in December 2018 as she was not happy with the care provided. She believed that Mr B required 24 hour care. Mr B’s mother said the family would support Mr B in his own property until the Council identified a care provider, and in the meantime they agreed to source a new provider for three evenings and nights.

A new care provider took over in February 2019. Between February 2019 and May 2019 Mr B received seven sleep-ins a week and an extra five hours daytime support, although the daytime support started in March.

On 9 May 2019 the Council carried out another assessment. This identified Mr B needed 24-hour support. The current care provider agreed to provide a 24-hour care package to ensure continuity of care. However, that was not yet in place when the LGO investigated, due to the need to recruit and train new staff.

What was found

The Council was not at fault for seeking the recovery of the Direct Payments. Council policy states it is the responsibility of the direct payment recipient or other suitable person to provide documentation of expenditure and evidence the money is being used in accordance with the support plan. Failure to provide documentation may result in a direct payment being suspended, stopped or recovered. The LGO was satisfied that Mr B had not provided evidence of expenditure, and Mr B’s mother also accepted some of the direct payment was used for purposes other than to meet Mr B’s assessed needs.

Mr B complained that the Council should have provided him with 24 hour care since his carer left him in 2017. The LGO highlighted that the Council did not identify a need for 24 hour care until May 2019, therefore was not at fault.

However, Mr B’s care plan did not line up with his assessments. For example in September he was assessed as needing sleep-ins seven nights a week, but his care plan was not updated and remained as three. Failure to ensure the care plan reflected the provisions set out in both 2018 assessments, and failure to then put in place those provisions was fault.

At the time of writing the LGO report (September 2019), Mr B was still not receiving 24 hour care as identified in May. This was fault. Instead, Mr B was receiving the same level of care as set out in his September 2018 assessment. That was seven overnights support per week with an additional five hours a week daytime support. Failure to put in place 24-hour care from May 2019 was fault.

The LGO considered that failure to put in place appropriate levels of care had caused Mr B serious injustice. He was distressed by the lack of care and felt unable to spend extended periods in his property alone.

In addition to that, Mr B’s mother had to step in and provide additional care to Mr B. Mr B spent extended periods in his mother’s house as he did not feel able to stay in his own property on his own which placed additional strain on family relationships. Those were serious injustices.

The LGO recommended the Council deduct £500 from the amount it is seeking to recover from Direct Payments, and pay Mr B’s mother £750 to reflect the significant impact having to provide additional care to her son had on her and her family.

Legal points for members of the public, service users, family members, advocates and council staff

This is a report that could do with a bit more law in it, from our perspective, and restitution for the care that Mr B’s mother undertook to do. We appreciate that that might not be what she wanted or asked for, and think that the stance that she volunteered to do it might be at the heart of why the investigator did not go that far.

The law that is missing is a set of principles that have been established over many years through community care case law.

It is a breach of statutory duty if a council does not deliver what is set out in a care plan

A care plan cannot be changed unless or until a lawful reassessment (and now a revision process under s27) has been carried out

A revision proposal cannot take effect unless or until the new plan is signed off

The plan must derive rationally and coherently from the assessment (or in this context, the re-assessment)

If a person has been unlawfully treated, and someone else has stepped up to fill the gap, it is possible that they may be due restitution from the recipient of the service, who thus needs to claim it from the council, by way of pointing out the unjust enrichment that the council has benefited from.

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The full Local Government Ombudsman report of Cheshire West and Cheshire Council’s actions can be found here